Report of the D.C. Bar Court Funding Committee: Challenges

Challenges to the Administration of Justice: A Closer Look at Outstanding Budgetary Problems
As described above, the D.C. Courts provide a wide range of programs necessary to ensure both access to, and the fair administration of justice for, the residents of the District of Columbia. Because the caseload in the District of Columbia is so high and extensive services are necessary to meet the legal needs of the community, inadequate funding creates a serious challenge to the justice mission of the Courts and the community's access to justice.

Non-Judicial Employee Salaries and Benefits
The Courts had been under a hiring freeze, except for the most critical positions, for three years following the passage of the Revitalization Act. In these three years, the Courts lost approximately 130 employees. Repeated failure to come close to federal employee salaries before January 1, 2001, coupled with under-staffing, have led to low morale and delays in critical court services. For example, trials have been delayed as all awaited the availability of a court reporter; there is an inordinate delay in the preparation of transcripts; some judges have had to wait to hire clerks and secretaries; and personnel throughout the Courts have been pressured as they compensate for unfilled positions. Furthermore, the Courts had been unable to fill certain essential positions because of its noncompetitive salaries. The inability of the Courts to fund any cost-of-living adjustments between 1997 and 2001, and thus to keep pace with compensation levels for non-judicial employees, is one of the more serious problems that resulted from reduced levels of court funding.
In 1999, in response to Congressional requests for a definitive pay parity assessment, the D.C. Courts commissioned the Human Resources Research Organization ("HumRRO") to perform a job comparison study of non-judicial positions in the D.C. Courts with their federal counterparts, both in the U.S. Courts or the federal agencies. As part of this study, HumRRO evaluated the competitiveness of salaries and benefits, and their effects on the Courts' ability to recruit and retain qualified applicants for technical and professional positions.
The HumRRO study, completed in November 1999, compared non-judicial positions within the D.C. Courts with similar positions within both the U.S. Courts and the federal agencies12. Based on a comparison of pay range minimums, midpoints and maximums, HumRRO concluded that, as of the time of the Report, on average, D.C. Courts non-judicial employees were being paid between 14 and 20 percent less than their federal court counterparts, and between 11 and 13 percent less than their federal agency counterparts. And, when the January 2000 federal 4.8 percent pay raise was factored into the comparison—a raise not provided to D.C. Court employees—the pay gap widened even further. When compared with federal salaries anticipated in January 2000, the report concluded that D.C. Court employees' pay levels would be 16%–19% below comparable federal employees.
The HumRRO study further determined that the difference in pay was not due to differing job classification systems. In fact, the study concluded that the D.C. Courts job classification system essentially mirrors the grading practices followed by the federal courts and in the General Schedule ("GS"), which incorporates Office of Personnel Management ("OPM") qualifications standards.
Not surprisingly, these substantial salary differences had a serious adverse effect on employee recruitment and retention. Between October 1998 and April 2000, as a result of unplanned attrition, the overall staffing level of the D.C. Courts fell from 1214 to 1126, and further attrition since then reduced total staffing during the year 2000. That attrition, the inability to fill existing vacancies, the resulting increase in workloads and inability to keep up with the workflow generated by the existing caseload, made it very difficult for the Courts to operate.
With enactment in November 2000, of a $5.25 million increase to the D.C. Courts 2001 budget, it became possible, as of November 2000, to increase salary levels for non-judicial employees of the D.C. Courts by more than 8 percent, and to provide the federal COLA in January 2001. As a result, the salary disparity between non-judicial employees of the D.C. Courts and federal employees has been satisfactorily resolved.
Securing pay parity for court employees came only after extraordinary efforts by the Courts, with the assistance of individual members of the bar. However, success in securing critical resources for the court system should be a priority for the organized Bar, and this goal can be assured best if the Bar is authorized to speak in support of funding for the Courts.
Despite the recent salary increase, a number of obstacles to effective staffing of the Courts appear likely to persist. For example, the availability of funding to fill essential positions remains a problem. A significant increase in funding will be required to replace some of the 130 employees lost by attrition during the past several years.
In addition, apart from issues of parity with comparable government employees, the D.C. Courts have had considerable difficulty filling technical, executive and professional positions because the D.C. Courts' salary levels have been far below those offered by private sector. The inability to recruit qualified candidates has resulted in long-term vacancies in critical areas13. To fill these critical vacancies, the D.C. Courts had to hire independent contractors at much higher compensation rates.
In fact, problems with staffing are not limited to positions in computer and/or technical fields. Vacancies for Clinical Psychologists, Case Managers, Audio Electronic Technicians, Bilingual Probation Officers and Bilingual Attorney/Negotiators have met with limited recruitment success. While it is a credit to the Courts and their staff that they have functioned as well as they have in the past several years, it remains a very high volume, stressed court system with many unmet needs. The lack of adequate staffing and compensation takes a serious toll.

Technology
Improvements in procedure and process are dependent upon technology. The District of Columbia Court System finds itself woefully behind in a race that is ever advancing. Currently, the Superior Court does not have an integrated computer system. Each Division of the Court (Civil, Criminal, etc.) has a discrete case processing system, with the Family Division having separate systems for each of its branches (domestic relations, juvenile, adoptions, etc.). Moreover, none of the Courts' component parts are able to interface with the computer systems of other criminal justice agencies in the city.
In fiscal year 2000, in response to a request from the Courts, Congress authorized the Courts to spend up to $2.5 million, out of general funds, to design an Integrated Justice Information System ("IJIS"). However, the Courts were not able to spend any funds for IJIS due to contractor delays in the completion of a need requirements analysis.
With grant funds, the Courts commissioned a need requirements analysis for the IJIS. In September 2000, the National Center for State Courts completed the study and produced a five-volume report, and showing that the Courts' computer systems are seriously outdated and modification would be impracticable. The study outlined what would be required in areas of hardware and software to update the system. The ultimate objective is to develop a computer system which would enable the Courts to undertake, as needed, a system-wide search across various of its divisions and sub-divisions. This would allow the court system to, among other things, check whether a specific person had cases pending, or concluded, in the various divisions through a single search, rather than requiring separate searches from each division.
The National Center for State Courts identified four commercially available management systems. The Courts are now developing a Request for Proposals ("RFP") to include the requirements for an integrated system which will simultaneously address the needs of each division. The projection is that the RFP would be published early in 2001. If the process carries forward as planned, the Court may be in a position to begin upgrading its hardware and installing the application in one branch of the Family Division by the end of the summer of 2001. Training will be provided for court personnel as they implement both the new hardware and the system.
The Courts are already leading a city-wide effort to permit more effective data connection among city and federal criminal justice agencies. To maximize the Courts' ability to share fully in the implementation of the city-wide system, they will first have to modernize their internal system.
The Courts are currently engaged in a strategic planning effort to help accomplish this. They are also working closely with District of Columbia's Chief Technology Officer to insure they develop a system internally which is compatible with the open architecture planned for city wide technology development.
The Courts have begun to study and translate for their own use procedures developed by the Office of Management and Budget (Information Investment Technology) which may insure that future projects are selected which are cost-effective while addressing the actual needs of the Courts.
Finally, the Courts have joined the Chief Information Officers ("CIO") working group. CIOs from federal, District, and small agencies (some of whom are quasi-government) convene for periodic meetings to discuss technical and informational problems or developments. This will, of course, allow the Courts to benefit from the experience and mistakes of other organizations in the information technology area.
While the Courts have developed an effective technology action plan, implementation may be problematic depending upon resources from funding authorities. The IJIS requirements analysis was funded through a DOJ Byrne Grant. In FY 2000, the requirements analysis was not completed until the end of the fiscal year. Therefore, the Courts were not in a position to obligate any FY 2000 funds for the IJIS project.
The Courts are now at the stage when, with the issuance of an RFP for the new unified system, funding will be needed if the effort is to move ahead. The FY 2001 appropriation omitted this funding. Some of the approximately $2.6 million is being provided by other grants, but additional funding will be necessary to avoid a delay in the system development.

Physical Space
More physical space is another acute need of the D.C. Courts. The space requirements of the Courts have increased significantly since the main building, the Moultrie Building, was first occupied in 1978. At that time there were only 44 trial judges and four commissioners. Since then, the trial court has been expanded to 59 judges and 15 hearing commissioners. The space requirements of the Court of Appeals have also increased.
Included in the Courts' FY2001 budget request was $8,200,000 to restore habitability of the Old Courthouse at 451 Indiana Avenue, N.W. and commence restoration which would permit its use by the District of Columbia Court of Appeals14. This would make additional space available for the highly stressed Superior Court in the Moultrie Building. However, the FY 2001 Appropriations Act provided only $825,000 for roof repairs for the old court house.
This historic landmark is deteriorating rapidly. A recent study found that the structure is sound but all major systems need to be replaced and much work must be done to remove hazardous materials15.
Until recently, the building was used for courtroom and office space. It has now been vacated due to its poor condition. An architect's report concludes that the increased space requirements of the Court of Appeals plus some general office space for related functions could be made available at 451 Indiana Avenue, if funds for renovation are provided.

Defender Services
The D.C. Courts are required to finance constitutionally mandated legal representation for indigent defendants through the payment of court-appointed private lawyers. Indigent persons charged with criminal offenses are appointed counsel under the Criminal Justice Act (CJA). In cases of child abuse or neglect or where termination of parental rights is the subject of the litigation, the child and/or parent, guardian, or custodian of the child can secure the assistance of court-appointed counsel under the Counsel for Child Abuse and Neglect statute (CCAN). In addition, there is a guardianship program available to pay for representation of incapacitated persons and minors whose parents are deceased16.
From the date of its original enactment in 1974, the District of Columbia Criminal Justice Act, 11 D.C. Code, §2601, et seq. (Act) has been challenging to administer. The prediction of the costs of such a program for budgetary purposes is inherently difficult and has proven to be so since its inception. Moreover, each year claims are submitted to the Courts for cases assigned in prior fiscal years.
From the date of its original enactment in 1974, the District of Columbia Criminal Justice Act, 11 D.C. Code, §2601, et seq. (Act) has been challenging to administer. The prediction of the costs of such a program for budgetary purposes is inherently difficult and has proven to be so since its inception. Moreover, each year claims are submitted to the Courts for cases assigned in prior fiscal years.
The total CJA Program cost alone in 1980 was approximately $3.5 million; in 1990, approximately $15.8 million and in 2000, approximately $28.5 million. The Courts requested $41 million for the combined CJA and CCAN programs for FY2001, including $3.4 million for a pay increase for investigators from $10 to $25 dollars per hour17. However, Congress approved only $34 million for all of these functions.
As described above, when the Revitalization Act was passed in 1997, the Courts inherited an unfunded CJA program liability of several million dollars. This was for assigned cases and/or attorney work done prior to the Revitalization Act for which no requests for payment had yet been submitted. Payment for such claims would have to be paid from the Courts' budget in future years.
Moreover, following the implementation of the Revitalization Act, the Courts' actual costs to administer the CJA program have far outpaced available funds. In FY 1998, with the unanticipated fiscal impact of the Revitalization Act, including increased costs for new federal benefits, and an unanticipated excess reduction of budget base after submission of budget estimates, upon transfer of adult probation to another agency, the Courts had to defer payment to court appointed counsel from late July 1998 until the next fiscal year, which commenced on October 1.
Thus, the Courts commenced FY 1999 with a significant liability to attorneys for compensation requested in FY 1998 which had to be paid out of the FY 1999 appropriation. However, funds were not appropriated to cover the full amount remaining due from FY 1998 in the FY 1999 budget, although the Courts were granted authority to spend interest on the FY 1999 appropriation to meet a small portion of this expense.
This funding shortfall was exacerbated further by a ceiling that was established under the FY 1999 Appropriations Act for indigent defense. That cap was reached by early September 1999, thereby causing another delay in payments of lawyers representing indigent defendants. In addition, the attorneys could not be paid until the GAO certified the extent to which the additional amount needed to pay the attorneys exceeded the amount that Congress appropriated for the program in FY 1999.
In FY 2000, the Courts' obligations were $28.5 million, which was $1.5 million above the amount appropriated. However, payments to court appointed attorneys remained steady throughout 2000. Anticipating a shortfall, the Courts instituted severe belt tightening and painful cost saving measures throughout the system, including a hiring freeze and no cost of living adjustments for non-judicial court personnel, to create a reserve of operating funds to ensure that all defender services would receive timely payments, thereby avoiding a reoccurrence of the past two years18.
Thus, the Courts have not, in recent years, received sufficient funding to pay for the CJA/CCAN obligations submitted for payment during each fiscal year. Moreover, because the CJA system is not fully computerized, processing and tracking of vouchers is slow. Obsolete technology has hampered the creation of databases and the development of information necessary for modern budget planning19.
Over the years, the Courts have tried to identify ways to streamline and improve the CJA system. The Joint Committee on Judicial Administration of the Courts has the administrative responsibility for the plan for representation of indigents in criminal cases20. Counsel furnishing representation under the plan are selected from panels designated and approved by the courts21. The D.C. Court of Appeals and the Superior Court each maintain panels for counsel in the respective courts. For years, the procedures for appointment and removal have been a source of debate and discussion and have prompted a variety of recommendations by both Bar and Bench. Below are the most recent developments.
In May 2000, then Chief Judge Eugene N. Hamilton issued an order22 setting up a CJA Panel Committee in Superior Court. Its mandate was to designate panels of attorneys from which future appointments would be made to represent indigent clients. At that time, 678 attorneys were eligible to accept appointments, but their qualifications varied widely. Appointments were made by court officers on a first-come, first-appointed basis. Judge Noel Kramer chaired the CJA Panel Committee which developed standards and procedures for reviewing the qualifications of these attorneys, reviewed them and issued its report. Most notably, the U.S. Panel (the panel representing defendants against the United States) was reduced to 250 of the best qualified attorneys23.
Judge Kramer now chairs the CJA Panel Implementation Committee which will tackle problems such as when and how new attorneys will be designated for the panels; under what circumstances attorneys should be removed; how to coordinate the needs of the court with the number of attorneys available for appointment; how to assure attorneys are available with special skills for special needs of defendants, including foreign language capability; and implementing standards for monitoring the quality of representation. Other issues such as the ongoing training and educational programs for CJA lawyers remain to be addressed. The Superior Court has also issued orders recently that would revise the eligibility process and compensation mechanisms for CJA Juvenile attorneys24 and CCAN attorneys25.
In addition, the Joint Committee on Judicial Administration is currently considering major amendments and revisions to the CJA Plan. A Draft dated November 24, 2000 has been published for comments from members of the bar. The Draft contains many revisions designed to accelerate the processing of vouchers. They would set clear guidelines, procedures and time limits for Superior Court (See Appendix A). The section applicable to the D.C. Court of Appeals is under internal review in that court.
While the budget for CJA & CCAN purposes has grown over the years, the fact remains that the statutory hourly rate of $50 per hour for CJA attorneys is out of line with today's economic realities. The statutory compensation maximums (caps) on types of cases are arbitrary, outdated and unrealistic. The procedure for waiver of caps is burdensome to court and attorney alike. Rates for investigators and experts are paltry26. Rates for attorneys were last raised from $35 to $50 in 1993. CJA lawyers historically go for many, many years without so much as a cost-of-living increase. They are the least powerful members of the bar, yet they fulfill the promise of equal justice under the law for thousands of our indigent citizens27.
The meagerness of the $50 per hour rate is highlighted by the disparity in hourly rate available under the federal Criminal Justice Act appointments. In-court rates are $75 per hour for cases that, in many instances, the U.S. Attorney's Office could just have easily assigned to Superior Court. Investigators can be paid $35 per hour in contrast to the $10 per hour Superior Court rate. The Courts support an increase in the hourly rate paid to investigators to $25 per hour and $75 per hour for attorneys.
In November 2000, the federal Criminal Justice Act was amended to raise the compensation maximums (caps) from $3500 to $5200 for felony cases and from $1000 to $1500 for misdemeanors28. By contrast, the District of Columbia's statutory caps are $2450 for felonies (less than one half the federal cap) and $1300 for misdemeanors.
In order for the Courts to properly administer these vitally important programs, the Courts will need both the tools of technology and adequate and consistent funding. The use of modern data processing and sophisticated data bases will enable the courts to determine more accurately the volume and cost of certain types of cases. Their needs and budgets could be predicted more precisely. This strategic planning and budgetary review requires improved technology. Long term expenditures for technology personnel and equipment will provide information that promises more efficiency, more intelligent planning, and might even reduce the cost of administering such a vast system. Moreover, the Courts will require sufficient funding in the defender services account to assure that this account and not the operating budget enables the Courts to fulfill their statutory obligations 29.

Notes

Of 1,108 non-judicial positions within the D.C. Courts, HumRRO identified 786 comparable positions with the U.S. Courts and federal agencies. According to HumRRO, the resulting match rate—71 percent—is much higher than that found in typical job comparisons and thus may be considered more accurate. HumRRO Report, at 5.

HumRRO reported that one IDMS Computer Specialist position had been vacant since 1994 and that two other computer specialist positions had been vacant since September 1998. Despite intensive recruitment efforts at Information Technology job fairs, the D.C. Courts non-competitive salaries hindered their success.

In a vast majority of states, courts rely on county or municipal sources of funding, primarily through the issuance of municipal bonds. One example is the recent construction of a new Criminal Justice Center in Philadelphia. This fourteen-story facility with 62 chambers and court rooms reportedly cost $113 million. Funding for construction was obtained by issuing city bonds.

Study by Karn, Charhaus, Chapman and Tuohey.

The D.C. Courts rely primarily on court-appointed private attorneys for the provision of constitutionally mandated indigent defense services. In contrast, most metropolitan areas in the country are served by public defender offices, using appointed counsel as a "back-up" in cases where the public defender has a conflict of interest. D.C. also has a Public Defender Service, but this program handles far fewer cases and is part of a different budgetary scheme. Thus, while most court systems use a combination of public defender services and appointed counsel, it is the primary reliance on appointed counsel that makes D.C. unique.

The request was for $30,537,000 for CJA lawyers and $7 million for CCAN lawyers. These figures do not include requested funds for investigators and court appointed guardians.

While many cities throughout the U.S. are struggling to meet the demand for indigent defense services while at the same time facing considerable budgetary constraint, nowhere in our research did we identify any indication that other cities are having to compromise funding for other administrative programs in order to meet their constitutionally mandated indigent defense obligations.

The 1999 Report of Chief Judge Annice M. Wagner, Chair of the Joint Committee on Judicial Administration cites improvement in the tracking of CCAN and CJA vouchers and payments by making progress in developing an automated database and monitoring system.

See D.C. Code §11-2601.

See D.C. Code §11-2602.

Administrative Order No. 00-19, May 12, 2000.

Administrative Order No. 00-26, July 17, 2000 implements this Report.

Administrative Order No. 00-31, September 22, 2000

Administrative Order No. 00-32, September 22, 2000

The Courts requested an increase in the rate for investigators in the FY 2001 budget from $10 per hour to $25 per hour.

Interestingly, a 1997 report of the ABA Standing Committee on Legal Aid and Indigent Defendants shows that in 1994, 16 states had rates of compensation for non-capital felonies for out-of-court work of between $40-$50. Most states pay at least $10 more for in-court work, although states paying $50 or more tend to pay the same rate for in- and out-of-court work. Sixteen states paid below $40; 11 states paid over $50. Some California counties pay more than $100 per hour.

The amendments also provide the added benefit of reimbursement to panel attorneys for expenses reasonably incurred in defending against malpractice actions arising from their CJA services. These changes, while certainly necessary for the federal program, have nonetheless further highlighted the disparity between the two systems.

We note since its inception, administration of the program has been challenging. The Bar and Courts have studied and sought to address the problems. The issue of the best method to provide indigent defense in DC and the continuing issues with the CJA system is beyond the scope of the Task Force's mandate but requires further attention from the Bench and Bar.